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LOUISE M. DUNN v. UNITED INSURANCE COMPANY AMERICA AND HARRY FLEISHER AND WILLIAM FORMWALT (01/03/84)

submitted: January 3, 1984.

LOUISE M. DUNN, ADMINISTRATRIX OF THE ESTATE OF JOSEPH V. DUNN, JR., DECEASED, APPELLANT,
v.
UNITED INSURANCE COMPANY OF AMERICA AND HARRY FLEISHER AND WILLIAM FORMWALT



NO. 2362 PHILADELPHIA 1982, Appeal from the Order Entered July 12, 1983 in the Court of Common Pleas, Philadelphia County, Civil Action Law at No. 3710 September Term, 1980.

COUNSEL

Louis Kattelman, Philadelphia, for appellant.

David H. Trushel, Pittsburgh, for appellees.

Spaeth, President Judge, and Del Sole and Hester, JJ. Spaeth, President Judge, filed a dissenting opinion.

Author: Del Sole

[ 334 Pa. Super. Page 14]

OPINION

Joseph V. Dunn, Jr., prior to the time of his death, was employed by the Defendant, United Insurance Company of America (hereinafter "United"). On June 23, 1979, he sustained a heart attack from which he was recovering. On September 28, 1979, United, acting through either or both Harry Fleisher and William Formwalt, co-employees, contacted Mr. Dunn at his home and advised him that his position of employment with the Defendant was to be changed and requested that he attend a meeting on October

[ 334 Pa. Super. Page 152]

, 1979, in the offices of United. Plaintiff's Decedent did attend that meeting and during the course thereof suffered a fatal heart attack. On October 22, 1979, Louise M. Dunn, wife of deceased, filed a Fatal Claim Petition with the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Worker's Compensation. The matter was referred to Peter E. Perry, Jr., Referee, Philadelphia District, various hearings were held and subsequently, the parties entered into a stipulation of facts which were adopted by the Referee. On May 21, 1980, the Referee entered an Order directing that the Defendant in the compensation proceeding (United) pay compensation to the Claimant (Louise M. Dunn, widow of Joseph Dunn, deceased) and specifically found that the death of the Decedent was a work-related injury as defined by Section 301(c)(1) of the Pennsylvania Worker's Compensation Act as amended. From the Order of the Referee, no appeal was taken.

Louise M. Dunn, in her capacity as Administratrix of the Estate of Joseph V. Dunn, Jr., deceased, filed this suit on September 24, 1980, in the Court of Common Pleas of Philadelphia County claiming damages against United, Fleisher and Formwalt for personal injuries as a result of the death of her husband, Joseph V. Dunn, alleging that the death was a result of wrongful, unjust and unlawful provocation and that the Defendants willfully conspired to deprive the Plaintiff of his position of employment. The Defendants filed an Answer and New Matter raising the defense of the Worker's Compensation Act.

The Defendant, United, next filed a Motion for Summary Judgment and in the reply thereto it was admitted that the Plaintiff had received Worker's Compensation benefits pursuant to the Order of Referee Perry. The trial court granted United's Motion for Summary Judgment and this appeal follows.

The Plaintiff argues that this matter is controlled by the case of Gillespie v. Vecenie, 292 Pa. Super. 11, 436 A.2d 695, which held that where an injury to an employee occurs as a

[ 334 Pa. Super. Page 16]

    result of personal hatred or animosity and is not compensable, then the employee is not barred from suing his employer for damages. However, the Plaintiff's reliance on the Gillespie case, supra, is misplaced. Specifically, the court stated in Gillespie as follows:

"Though, we find a cause of action stated against both defendants, we are foreclosed, by the record from giving the lower court definitive guidance. The record is somewhat contradictory and incomplete as to what action was taken pursuant to the [Worker's Compensation Act] . . . We are unable, from the state of the record, to determine whether Gillespie is barred by any agreement, from proceeding in tort against Transport. Nor is the record dispositive as to whether appellant and/or defenses by their failure to appeal rulings concerning a workman's compensation claim . . .

When an injury had been compensated under the Act, then the Act, 77 P.S. § 481, would prohibit the claiming against the employer."

The Gillespie court was confronted with the situation wherein it was unclear on the record whether there was compensation paid for a compensable injury pursuant to the Act. However, 77 P.S. § 481(a), which states in pertinent part as follows:

"(a) The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or any one otherwise on account of any ...


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